Appellate Division: Second Judicial Department

M57314

S/cb

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

WILLIAM F. MASTRO, JJ.

2005-03417 The People, etc., respondent, v Vincenzo Giambalvo, appellant. (Ind. No. 1395-03)

ORDER TO SHOW CAUSE

Appeal by the defendant from order of the Supreme Court, Suffolk County, dated March 7, 2005, which determined his motion pursuant to chapter 738 of the Laws of 2004, to reduce his sentence. By decision and order on motion dated September 15, 2005, the parties were directed to show cause why an order should or should not be made and entered summarily affirming the order dated March 7, 2005, on the ground that pursuant to the defendant's certificate of conviction (see CPL 60.60), the defendant does not stand convicted of a class A-I felony, and therefore is not subject to the provisions of the statute (see L 204, Ch 738). The appellant has taken an appeal from an resentence of the County Court, Nassau County, imposed April 14, 2006, which is pending under Appellate Division Docket No. 2006-04385.

Now, on the court's own motion, it is

ORDERED that the appellant show cause before this court why this appeal should or should not be dismissed on the ground that it has been rendered academic by the appeal taken from the resentence of the County Court, Nassau County, imposed April 14, 2006, by filing an affirmation or affidavit on that issue with the Clerk of this court on or before August 24, 2007; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order to show cause upon the defendant by ordinary mail pursuant to CPL 470.60(2), at his last known place of residence or, if he is imprisoned, at the institution in which he is confined, and by regular mail upon the attorney herein assigned to represent the defendant and upon the District Attorney.

PRUDENTI, P.J., MILLER, SCHMIDT, CRANE and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court